Allahabad High Court
Harnam Kaur vs B.R. And Others. on 5 February, 2020
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 68 Case :- WRIT - B No. - 15848 of 1981 Petitioner :- Harnam Kaur Respondent :- B.R. And Others. Counsel for Petitioner :- Shishir Kumar,Krishna Mohan,M.A.Zaidi,Shishir Kumar Counsel for Respondent :- S.C.,J.S. Tomar,Rohit Sharan Tomar,Sanjai Srivastava,Suman Jaiswal Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri M.A. Zaidi, learned counsel for the petitioner; Sri N.B. Nigam and J.S. Tomar, learned counsel for the private respondents and Sri Anil Kumar Singh Baghel, learned Additional Chief Standing Counsel for the State-respondents.
2. Present writ petition has been filed by the petitioner, who claims to be the transferee under an unregistered sale deed dated 16.12.1969. The challenge raised is to the order passed by the Board of Revenue dated 12.09.1977, by which, the petitioner's second appeal had been dismissed.
3. In short, the petitioner claims that respondent - Faqir Chand, the original respondent no.4 had executed the unregistered sale deed dated 16.12.1969 in her favour with respect to the disputed plot against payment of Rs. 5,000/-.
4. It was further the case of the petitioner that the said Faqir Chand had agreed to deposit amount, twenty times of the land revenue to obtain 'bhumidhari' rights over the plot in dispute. At the same time, it remained an undisputed fact that the said Faqir Chand never deposited any amount equivalent to twenty times the land revenue assessed on the disputed plot.
5. It is, in such circumstances, that on 11.02.1971, the said Faqir Chand brought a suit for eviction of the present petitioner, under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Zamindari Act') in the Court of SDM Sadar, Rampur. A written statement was filed by the present petitioner in the aforesaid suit wherein it was asserted that a fraudulent sale deed had been executed by Faqir Chand, upon his representation that he would deposit twenty times the land revenue to obtain 'bhumidhari' rights over the land.
6. Amongst others, the trial court framed issue no.(i) as to whether, vendor Faqir Chand was a mere 'sirdar'. On the basis of 'khatauni' entry, that issue was decided in favour of the plaintiff and against the defendant/present petitioner. All other issues were also decided in favour of the plaintiff. The suit was thus decreed, on 11.12.1972.
7. In the first appeal preferred by the petitioner before the Additional Commissioner, Rohilkhand Division, Bareilly, that finding was reiterated, inasmuch as, it was held that the vendor Faqir Chand never acquired 'bhumidhari' rights and that he remained a 'sirdar' at the time of the execution of the alleged sale deed. Accordingly, the appeal came to be dismissed on 12.04.1973.
8. The petitioner carried the matter in second appeal no.237 of 1972-1973 before the Board of Revenue where the matter was again thrashed out in detail and the second appeal dismissed, vide order dated 12.09.1977.
9. Upon hearing the parties, the Board of Revenue also found that the sale deed being claimed by the petitioner was invalid, and therefore, possession that may have been obtained under such invalid deed remained adverse to the respondents. That possession did not confer any legal title and remained hostile to the vendor. It was also found that the sale deed was unregistered, and consequently, no benefit could be claimed of order passed under Section 145 Cr.P.C. Against that order, a review application was also filed, mainly to question the finding recorded by the Board of Revenue as to admission made by the petitioner that the sale deed as invalid. However, the review petition was also dismissed, vide order dated 04.12.1981.
10. Learned counsel for the petitioner has vehemently urged that the petitioner had never admitted before any authority in any proceedings that the sale deed in it's favour dated 16.12.1969 was invalid. In fact, it was the petitioner's case that such sale deed had been executed in it's favour upon a clear disclosure made by the respondent no.4 that he would pay twenty times the land revenue and acquire 'bhumidhari' rights. Thus, fraud has been played on the petitioner and the respondents could not be permitted to take benefit of such fraud perpetrated by himself. Reference has also been made to the order dated 25.06.1970 passed in proceeding under Section 145 Cr.P.C. wherein it was clearly found that the petitioner was in possession over the disputed plot. Thus, he would submit there can be no dispute as to possession having been made over to the petitioner under the sale deed dated 06.12.1969. Relying on a decision of the Uttarakhand High Court in the case of Bhairab Dutt Joshi Vs Addl. Chief Revenue Commissioner, Circuit House & Others 2005 (98) RD 358, it has been submitted that possession having been made over to the petitioner under the sale deed, the transaction would stand covered under Section 164 of the Zamindari Act and no suit for eviction would be maintainable in such circumstances.
11. On the other hand, learned counsel for the private-respondents would submit that for any benefit of Section 164 of the Zamindari Act to arise and for the suit under Section 209 of that Act to be dismissed as not maintainable, it was necessary to be established that their existed a valid agreement to sell or a valid sale deed. In the first place, the petitioner never claimed existence of any registered sale deed, and in the second even in the present proceedings, such sale deed has not been proved. In any case, taking the petitioner's case at it's best, it was never asserted that the vendor Faqir Chand acquired 'bhumidhari' rights, at any point of time. The fact of assurance given by Faqir Chand to pay twenty times land revenue was also never proved or established. On the other hand, the plaintiff always claimed to be a 'sirdar'. Thus, in absence of the contrary being proved, it has to be accepted that the respondent no.4 was merely a tenant with non-transferable rights and not a 'bhumidhar'. In such scenario, the sale deed that is claimed to have been executed by Faqir Chand, would remain invalid, irrespective of other pleadings between the parties.
12. Since, the sale deed would remain invalid, no benefit under Section 164 of the Zamindari Act could be drawn by the petitioner as that provision pre-supposses existence of a valid deed. In any case, an invalid deed did not confer any rights. As to the order passed under Section 145 Cr.P.C., the physical possession that was found to be in favour of the petitioner remained hostile to the vendor/Faqir Chand, and therefore, provision of Section 209 of the Zamindari Act would continue to apply in the facts of the case.
13. Having heard learned counsel for the parties and having perused the record, insofar as the decision relied upon by learned counsel for the petitioner, it is seen that the same followed the earlier decision of this Court in Banjara Singh Vs Board of Revenue, U.P. & Others 1992 RD 268. The relevant part of paragraph no.9 of the said judgment is extracted hereinunder :-
"..........The transfer of possession indicates that some right of vendor i.e. possessory title, was transferred. In any way what is decisive is not the nature of transaction in the present case, but as to whether the possession of the defendant was otherwise than in accordance with law so as to make him liable for ejectment. As the defendant was in possession by virtue of his amount advanced, hence his possession could not be said to be otherwise than in accordance with law."
14. However, it has to be seen whether that principle would apply in the facts of the present case. In this regard, it is seen that neither in the decision in the case of Bhairab Dutt Joshi Vs Addl. Chief Revenue Commissioner, Circuit House & Others (supra) nor in the case of Banjara Singh Vs Board of Revenue, U.P. & Others (supra), there was any dispute as to the validity of the agreement whereunder consideration had passed. In fact, it appears that in both cases the deed itself was valid.
15. In Bharit Vs Honble Board of Revenue, Uttar Pradesh, At Allahabad 1972 RD 451, a division bench of this Court had to deal with the question of the effect of possession in pursuance of the invalid deed. That issue was decided in the following terms :-
"(6) ........ In case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the invalid sale deed, namely as the full owner of the rights in the plots, which were the subject-matter of sale. It is from this point of view it has been said that the possession of such a transferee is adverse to the transferor from the very first day when the transferee enters possession of the land.
(7) The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferee's possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any legal title, it would be adverse to the transferor."
16. Thus what has to be seen is whether the sale deed claimed by the petitioner is valid. It is here that it is an undisputed fact that besides the promise made, the respondent no.4 Faqir Chand remained a 'sirdar' as he never deposited twenty times land revenue. In that regard, merely because the petitioner alleged that Faqir Chand had promised to deposit such amount would be of no consequence, as at most, it may have given rise to further or other cause of action to the petitioner against the said Faqir Chand for such false promise.
17. However, insofar as it is undisputed, his nature of rights over the disputed plot remained unchanged being 'sirdar', Faqir Chand never became a 'bhumidhar' on the date of execution of the alleged sale deed. Once this fact gets established, it is almost by way of an operation of law that the sale deed claimed by the petitioner (whether registered or unregistered) would remain inconsequential and invalid as the vendor had no title in the land and therefore he could not have conferred the same on the petitioner.
18. In view of the sale deed set up being invalid, for that reason, the possession of the petitioner which remained for not more than two years, till filing of the suit, was hostile to the respondents. Clearly, the provision of Section 209 of the Zamindari Act were applicable in such facts and the suit was maintainable and has rightly been decreed.
19. As to other submissions advanced by learned counsel for the petitioner based on the provision of Section 43 of the Transfer of Property Act, 1882, such plea was never raised in the proceedings before the court below. No evidence appears to have been led in that regard, and in any case, no such plea may be entertained at this belated stage, that too in absence of the sale deed being shown to this Court.
20. Accordingly, the writ petition is dismissed.
21. Interim order, if any, stands vacated.
Order Date :- 5.2.2020 Abhilash/Shubham